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longer pregnant, he may issue his warrant appointing a day for the execution of the judgment.

1227. Proceedings when judgment of death remaining in force has not been executed.

SEC. 1227. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction was had, on the application of the district attorney, must order the defendant to be brought before it, or if he is at large, a warrant for his apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reasons exist against the execution of the judgment, must make an order that the sheriff execute the judgment at a specified time. The sheriff must execute the judgment accordingly.

Judgment of death, in force and unexecuted. If the judgment of death be not executed, from any cause, on the day appointed, it is competent for the court which rendered the judgment to appoint another day for carrying it into execution: People v. Bonilla, 38 Cal. 699; see also People v. Dick, 39 Id. 102. Defendant has the right to be present when such order fixing the time for his execution is made, and to make it in his absence is error: People

1228. Punishment of death, how inflicted.

v. Sprague, 54 Id. 92; People v. Sing Lum, 61 Id. 538. It will be presumed that the defendant was present unless the record discloses that he was not: People v. Sing Lum, supra.

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The purpose of this section is in the nature of an order to show cause, and when any reason exists why the judgment of the court should not be executed, it is the duty of the defendant when brought into court to present it:" People v. Sing Lum, 61 Cal. 538, 540.

SEC. 1228. The punishment of death must be inflicted by hanging the defendant by the neck until he is dead.

Stats. 1851, 212; cited People v. Brown, 59 Cal. 345, 357.
Warrant of execution: Sec. 1217.

1229. Execution, where to take place, and who to be present.

SEC. 1229. A judgment of death must be executed within the walls or yard of a jail, or some convenient private place in the county. The sheriff of the county must be present at the execution, and must invite the presence of a physician, the district attorney of the county, and at least twelve reputable citizens, to be selected by him; and he shall, at the request of the defendant, permit such ministers of the gospel, not exceeding two, as the defendant may name, and any persons, relatives or friends, not to exceed five, to be present at the execution, together with such peace-officers as he may think expedient, to witness the execution. But no other persons than those mentioned in this section can be present at the execution, nor can any person under age be allowed to witness the same.

Founded upon the act to abolish public executions: Stats. 1858, 192, sec. 1.
Cited in People v. Brown, 59 Cal. 345, 357.

1230. Return upon death-warrant.

SEC. 1230. After the execution, the sheriff must make a return upon the deathwarrant, showing the time, mode, and manner in which it was executed.

Stats. 1858, 192, sec. 3.

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APPEALS, WHEN ALLOWED AND HOW TAKEN, AND THE EFFECT THEREOF. 1235. Who may appeal-Appeal on questions of law alone.

SEC. 1235. Either party in a criminal action amounting to a felony may appeal to the supreme court, on questions of law alone, as prescribed in this chapter.

Appeal, right to.-Prior to the adoption of the present constitution, the right to appeal in criminal actions was limited to actions amounting to a felony upon questions of law alone: Cal. Const., 1863, art. 6, sec. 4; People v. Smallman, 55 Cal. 185; People v. Aubrey, 53 Id. 427. Under the present constitution the appellate jurisdiction of the supreme court in criminal cases extends to "all criminal cases prosecuted by indictment or information in a court of record:" Const. Cal., 1879, art. 6, sec. 4.

In does not confine the supreme court's ap. pellate jurisdiction to cases of which a court of record has jurisdiction; therefore, an appeal may lie to the supreme court, although the superior court has no jurisdiction of the offense charged in the information: People v. Pingree, 61 Cal. 141. There a motion to dismiss an appeal, on the ground of want of jurisdiction, was denied, and the judgment reversed, with directions to the court below to dismiss the action. Where there is no evidence to sustain the charge set forth in the indictment or in

1236. Parties, how designated on appeal.

formation, a question of law is presented, on which the supreme court, in the exercise of its appellate criminal jurisdiction, is competent to act: People v. Smallman, 55 Cal. 191; People v. Jones, 31 Id. 565.

Appellate jurisdiction, how exercised.— If no means are provided by statute for taking an appeal in those cases in which the right of appeal is given by the constitution, a case may be removed to the supreme court by writ of error: People v. Thistleton, 52 Cal. 220; Adams v. Town, 3 Id. 247; Middleton v. Gould, 5 Id. 190. But where an appeal is given, a writ of error does not lie: S. P. R. R. Co. v. Harlar, 24 Id. 334.

Misdemeanors, appeals in cases amounting to.-Compare this section with article 6, section 4, of the constitution above quoted, and see the construction adopted in People v. Jordan, 4 West Coast Rep. 85, where appeals in misdemeanor cases, prosecuted by indictment or information, it is determined will be entertained. See that case for the procedure decided upon.

SEC. 1236. The party appealing is known as the appellant, and the adverse party as the respondent, but the title of the action is not changed in consequence of the appeal.

1237. In what cases appeal may be taken by defendant.

SEC. 1237. An appeal may be taken by the defendant:

1. From a final judgment of conviction;

2. From an order denying a motion for a new trial;

3. From any order made after judgment, affecting the substantial rights of the party.

Appeal by defendant.-The cases in which an appeal may be taken by defendant are only those specified in the foregoing section. Such orders and rulings made prior to the judgment, and involving the merits, or which may have affected the judgment from which an appeal is not in terms given, can only be reviewed on appeal from the final judgment of conviction:

People v. Majors, 1 West Coast Rep. 859; People v. Clarke, 42 Cal. 622. A preliminary order made in the action is not appealable. Thus no appeal lies from an order directing a charge, once ignored, to be resubmitted to another grand jury: People v. Clarke, supra. Neither does an appeal lie by the people from a verdict of acquittal: People v. Webb, 38 Id.

467. Under the provisions of the criminal practice act, an order setting aside an indictment was held appealable: People v. Jones, 31 Id. 565. But an appeal does not lie from an order admitting a party to bail: People v. Schuster, 40 Id. 627. An appeal by defendant from an order made subsequent to the sustaining of a demurrer to an indictment, that the district attorney file an information against the defend. ant, is not appealable: People v. Specht, 62 Id. 537. Neither does an appeal lie by the defendant from an order granting him a new trial: People v. Ah Choy, 6 Pac. C. L. J. 1013. Nor from an order denying defendant's motion in arrest of judgment: People v. Markham, 64 Cal. 157, 163; People v. Majors, 1 West Coast Rep. 859. Nor from a judgment against defendant on his plea of former conviction: People v. Majors, supra.

Appeal from final judgment.-Upon an appeal from the judgment, without having made a motion for new trial, defendant may rely upon any of the grounds of exception mentioned in section 1170, but in such case he must have had a bill of exceptions settled, as provided in section 1171: People v. Keyser, 53 Id. 183.

Appeal from order denying new trial.— An appeal from an order denying a new trial will be dismissed if taken more than sixty days after the order is made: People v. Varnum, 53 Cal. 630. If the appeal is from an order deny. ing a new trial, and the transcript contains no bill of exceptions, statement, or affidavits, the order denying a new trial will be affirmed: People v. Welch, 57 Cal. 138. Defendant can not appeal from an order granting him a new trial: People v. Ah Choy, 6 Pac. C. L. J. 1013. See also People v. Keyser, 53 Cal. 183.

Appeal from order made after judg. ment. When defendant is convicted of murder, and sentenced to be hanged, an order made by the court appointing a day for execution is an order from which an appeal may be taken: Pepole v. Sprague, 54 Cal. 92.

Motion in arrest of judgment is not appealable: People v. Markham, 64 Cal. 157; People v. Majors, 1 West Coast Rep. 859.

Intermediate orders not appealable: See People v. Clarke, 42 Cal. 622; People v. Ah Kim, 44 Id. 384; People v. Majors, 1 West Coast Rep. 859.

1238. In what cases an appeal may be taken by the people. SEC. 1238. An appeal may be taken by the people:

1. From a judgment for the defendant on a demurrer to the indictment or information;

2. From an order granting a new trial;

3. From an order arresting judgment;

4. From an order made after judgment, affecting the substantial rights of the people;

5. From an order of the court directing the jury to find for the defendant. [Amendment, approved April 9, 1880; Amendments 1880, 26 (Ban. ed. 173); took effect immediately.]

Appeal by the people: An order sustaining a demurrer is a final judgment, from which an appeal will lie: People v. Ah Own, 39 Cal. 604; People v. Jordan, 4 West Coast. Rep. 84; but see People v. Martin, 47 Cal. 112. In People v. Young, 31 Id. 563, an order setting aside an indictment on defendant's motion, on the ground that it was found on illegal testimony, was held appealable. In People v. Schuster, 40 Id. 627, it was held that no appeal could be taken from an order of a judge admitting the defendant to bail under the provisions of the title relating to habeas corpus: Sec. 1490 et seq. An appeal does not lie by the state from a verdict of acquittal: People

v. Webb, 38 Id. 467; see also People v. Ah Kim, 44 Id. 384. No appeal lies from an order admitting a party to bail: People v. Schuster, 4C Id. 627. Nor from an order dismissing the action for want of prosecution: People v. Hollis, 2 West Coast Rep. 71. An appeal by the people from an order sustaining a demurrer to an indictment will be dismissed, there being perfected an appeal by the defendant from the same order: People v. Jordan, Id. 133. Where an attempt is made to appeal from a non-appeal able order, the court will either dismiss the appeal or strike the cause from the calendar: People v. Hollis, supra.

1239. Appeal, within what time to be taken.

SEC. 1239. An appeal from a judgment must be taken within one year after its rendition, and from an order within sixty days after it is made.

Appeal from order.-If taken more than sixty days after the order is made, it will be dismissed: People v. Varnum, 53 Cal. 63).

Appeals in misdemeanor cases." We will adopt the practice pursued in taking the present appeal, and will hereafter entertain appeals in criminal actions prosecuted by indict

1240. Appeal, how taken.

ment or information amounting to misdemeanors only from the judgments and orders mentioned in chapter 1 of title 9 of part 2 of the Penal Code, where the appeal is taken in the manner therein prescribed:" People v. Jordan, 4 West Coast Rep. 84, 90.

SEC. 1240. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed a notice stating the

appeal from the same, and serving a copy thereof upon the attorney of the adverse party.

"This section is such a departure from section 488 of the criminal practice act as will avoid the rule laid down in People v. Wallace, 23 Cal. 93:" Commissioners' note.

Appeal, how taken.-It is not necessary that the notice of appeal should be signed by the attorney who tried the action. Any attorney authorized by defendant may sign the notice of appeal, and that, too, without a formal substitution of attorneys: Ex parte Clarke, 62 Cal. 490. The transcript on appeal should show that the notice of appeal has been both served and filed: People v. Phillips, 45 Id. 44; People v. Clark, 49 Id. 455. A recital in a bill of exceptions that a notice of appeal has been served and filed is no evidence that an appeal has been taken: People v. Phillips, 45 Id. 44. The notice of appeal must be served and filed on the same day: People v. Ah Yute, 56 Id. 119. When no notice of appeal is given, or no record that any was given appears to the supreme court, the case will be stricken from the calendar, there being no appeal taken: People v. Pico, January term, 1872 (No. 3017).

Appellate jurisdiction, how exercised: See. 1235, note.

Appeal bond.-Where in a criminal case a justice of the peace exacts, and the defendants give, a security in the form of a bond on appeal which the statute does not require, no liability results from its execution: People v. Cabannes, 20 Cal. 525.

Notice, filing and serving.-Whether this section requires filing to precede service of notice not decided: People v. Grigsby, 62 Cal. 482; or People v. Jordan, 4 West Coast Rep. 138. But an admission of "due service" will be construed of service after filing: People v. Grisby, supra. And the service and filing on the same day is a compliance with the statute: People v. Jordan, supra.

Sufficiency of notice: See People v. Jordan, 4 West Coast Rep. 85, where a notice was held sufficient, as plainly indicating the purpose of appeal. Calling a judgment an "order" does not render the notice ineffectual: Id.

1241. When notice may be served by publication.

SEC. 1241. If personal service of the notice cannot be made, the judge of the court in which the action was tried, upon proof thereof, may make an order for the publication of the notice in some newspaper for a period not exceeding thirty days; such publication is equivalent to personal service.

1242. Effect of an appeal by the people.

SEC. 1242. An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed. 1243. Effect of appeal by defendant.

SEC. 1243. An appeal to the supreme court from a judgment of conviction stays the execution of the judgment in all capital cases, and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the supreme court, that in his opinion there is probable cause for the appeal, but not otherwise. [Amendment, approved March 30, 1874; Amendments 1873-4, 450; took effect July 1, 1874.] Stay of execution.-Prior to the adoption of the code, the only method by which a stay of execution could be effected was by admitting the prisoner to bail pending appeal: Ex parte Marks, 49 Cal. 680; Ex parte Hoge, 48 Id. 3.

Bail after conviction of felony: Sec. 1272, note.

The amendment added the words after judgment "in all capital cases and in all other

cases.

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The following is the note of the commissioners: "Sections 1243, 1244, and 1245 were by the commissioners incorporated in the code, at the suggestion of Justice Wallace. Prior to the adoption of the code, the judgment, unless it imposed a fine only, might be executed pending an appeal; and perhaps, save in the case mentioned, and upon a judgment in a capital case, there was no power in the court to stay the execution of a judgment pending the appeal, unless in the cases in which bail might be taken and the defendant had the ability to give it. Said Justice Wallace, in Ex parte Hoge, on

habeas corpus, 48 Cal. 3: The right to appeal to the supreme court is guaranteed by the constitution, and is as sacred as the right of trial by jury. It is one of the means the law has provided to determine the question of his guilt or innocence. Upon such an appeal, the ultimate question is nearly always as to the validity of the judgment under which the prisoner is to suffer; and it is certainly not consonant to our ideas of justice, if it can be prevented by legal means, that even while the question of guilt or innocence is yet being agitated in the form of an appeal, the prisoner should be undergoing the very punishment and suffering the very infamy which it was the lawful purpose of the appeal to avert. It would be somewhat akin to a practice of punishing the accused for his alleged offense while the jury was deliberating upon the verdict.' Hoge's case illustrates the evil of the rule existing prior to the code. No court could have stayed the execution of the sentence. Yet upon the appeal the judgment was reversed from the bench. The defendant

was admitted to bail pending the appeal, and thus the punishment was averted; but whether it could be averted or not depended solely upon his ability or non-ability to give bail. The law discriminated in favor of the rich and influential, and against the poor and friendless. Under the provisions of sections 1243, 1244, and 1245,

1244. When defendant in custody.

every appeal taken in good faith will have the effect of suspending the judgment pending the appeal, the prisoner remaining in the custody of the sheriff in cases in which the offense is bailable, or in which, if bailable, the prisoner is unable to give bail."

SEC. 1244. If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal.

1245. When execution of judgment commenced.

SEC. 1245. If, before the granting of the certificate, the judgment has commenced, the further execution thereof is suspended, and upon service of a copy of such certificate, the defendant must be restored, by the officer in whose custody he is, to his original custody.

1246. Duty of clerks upon appeal.

SEC. 1246. Upon the appeal being taken, the clerk with whom the notice of appeal is filed must, within ten days thereafter, in case the bill of exceptions has been settled by the judge before the giving of said notice, but if not, then within ten days from the settlement of the bill of exceptions, without charge, transmit to the clerk of the appellate court a copy of the notice of appeal, and of the record, and of all bills of exceptions, instructions, and indorsements thereon; and, upon the receipt thereof, the clerk of the appellate court must file the same and perform the same services as in civil cases, without charge. [Amendment, approved April 9, 1880; Amendments 1880, 9 (Ban. ed. 153); took effect from passage.]

Duty of clerk-It is the duty of the clerk to certify to the correctness of the documents in a transcript, if they are correct copies of the originals in his custody, and transmit the same to the supreme court. For all the purposes connected with its appellate jurisdiction, the supreme court has the same power over the clerk of the court below that it has over its own clerk. After an appeal is perfected, the court below has no longer any jurisdiction of the action, and an order of such court forbidding its clerk to certify to the correctness of a transcript on appeal is void: People v. Center, 54 Cal. 236; see also People v. Geiger, 49 Id. 643; People v. Myers, 20 Id. 76.

Transcript on appeal.—In a criminal case, a copy of the notice of appeal and of the record, and of all bills of exceptions, instructions, and indorsements thereon, constitutes the only evi

dence in the supreme court of the proceedings of the court from which the appeal is taken. The "record of the action "consists of: 1. The indictment and a copy of the minutes of the plea or demurrer; 2. A copy of the minutes of the trial; 3. The charges given or refused, and the indorsements thereon; 4. A copy of the judgment: People v. Colby, 4 Pac. C. L. J. 333; see also People v. Martin, 32 Cal. 91; People v. Romero, 18 Id. 89. The clerk of the supreme court must file the transcript in criminal actions without his fees in advance: People v. Myers, 20 Id. 76. Appeal was dismissed, the transcript not containing the judgment from which the appeal was taken: People v. Sing Lum, 60 Id. 6. To enable the appellate court to review the instructions, the evidence must be embodied in the record: Id.; People v. Herbert, 61 Id. 545.

CHAPTER II

DISMISSING AN APPEAL FOR IRREGULARITY.

1248. For what irregularity and how dismissed.

SEC. 1248. If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may, on any day, on motion of the respondent, upon five days' notice, accompanied with copies of the papers upon which the motion is founded, order it to be dismissed. [Amendment, approved April 9, 1880; Amendments 1880, 10 (Ban. ed. 154); took effect from passage.]

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